State v. Martucci

Citation380 S.C. 232,669 S.E.2d 598
Decision Date24 September 2008
Docket NumberNo. 4438.,4438.
CourtSouth Carolina Court of Appeals
PartiesThe STATE, Respondent, v. Mark A. MARTUCCI, Appellant.

Appellate Defender Elizabeth A. Franklin, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Senior Assistant Attorney General Norman Mark Rapoport, all of Columbia; and Solicitor Robert M. Ariail, of Greenville, for Respondent.


Mark A. Martucci (Martucci) appeals his conviction for homicide by child abuse. We affirm.


Martucci lived with Brandi Holder (Holder) and her two-year old son (Child) in July 2002. Child died on Wednesday, July 17, 2002. Martucci and Holder were indicted for homicide by child abuse under Section 16-3-85 of the South Carolina Code. Martucci did not appear for trial and was tried in his absence February 6-9, 2006. The jury convicted Martucci, and his sentence was sealed. On March 6, 2006, Martucci appeared in court and was sentenced to life in prison.

A priori, the Court embarks on a juridical journey encapsulating a temporal and spatial analysis of the evidentiary record. Nurse Ladye Kelly testified that Martucci and John Parker (Parker) brought Child to the emergency room of Allen-Bennett Hospital. Kelly declared Child appeared lifeless. He "had multiple bruises over most of his body." She described "a very odd pattern" of marks on his face which appeared to be knuckle prints. She stated Child "had multiple bruises on his legs, on his arms. His eyes were blackened. He also had a place around his mouth that was scratches or abrasions ... and had a lot of bruising." Child had "a purple black mark that ... covered most of his back." Kelly substantiated the bruises "were all in different stages of healing. Some of them were very fresh looking dark-purplish blue colors. Others were yellow, barely noticeable that had healed and were in between those two things. Some were darker than others. Some were lighter than others." She recalled that Child's abdomen was "very swollen." He was "very pale. He was blue around the mouth," which showed he had not been breathing.

Kelly assisted emergency room doctor Kevin Gregg in trying to revive Child, but they were unsuccessful. Dr. Gregg asserted the Child was "freshly dead. He was cooler—his temperature was cooler than 98.6, but it was warmer than room temperature." Dr. Gregg recollected that Martucci and Parker told him about a "four-wheeler ATV accident" earlier in the week. Dr. Gregg declared they told him that Child was not wearing a helmet on an ATV and "flipped or was ejected out of the ATV, so the story went. The story was that he looked okay after the injury so the family didn't feel a need to bring him to the ER to get checked." Holder and Martucci advised Dr. Gregg that Child appeared weak and had vomited several times the day before. Dr. Gregg professed Martucci claimed that he performed mouth-to-mouth resuscitation, and Child "bit him on the upper lip." Dr. Gregg annunciated this story was implausible because "that is something I've never seen before. I've never head of it before. When you do rescue breathing on somebody, they are unconscious. And an unconscious person can't bite.... I don't understand why an unconscious boy would bite somebody on the lip.... If he's conscious, he doesn't need mouth to mouth resuscitation." Dr. Gregg recalled that Martucci had an open cut on his lip, but he did not treat Martucci's injury.

Dr. Gregg opined Child's injuries were inconsistent with the kind of accident described. He explained Child "had bruises. He didn't have cuts. He didn't have abrasions. He didn't have the usual signs of wear and tear you see on a two-and-a-half-year-old boy. He didn't have skinned knees. He didn't have scraped up palms from playing or rolling or falling off the porch. He had bruises."

John Parker (Parker) asseverated that he visited Martucci and Holder's home "[f]rom time to time." He saw Martucci interact with Child. He testified without objection:

Parker: There was an incident where we were in his living room and [Child] was crying. And Mr. Martucci had told him on numerous occasions to ... He was asked—Mr. Martucci asked him—or told him on numerous occasions to stop crying. And [Child] did not do so. He then proceeded to tape his mouth shut with tape.


There were episodes where he would be in the bathroom and Mr. Martucci would be giving him a bath. I would hear [Child] crying. And I would walk in to see what he was crying about and Mark would be pouring water over his head. And [Child] would continue to keep crying. He would tell him that crying is for pussys. And he would dunk his head under water. He did that on numerous occasions.

Assistant Solicitor: When you say "dunk his head under water," was it a quick dunk?

Parker: No, ma'am. I'd say, at least, a couple of seconds at a time.

Assistant Solicitor: How was [Child] reacting to that?

Parker: He would swallow water almost like he was choking on the water. And then he would pull him up. And then no sooner—he would barely even catch his breath and he would do it again.


Assistant Solicitor: Did you witness anything else abusive?

Parker: We were in the van—no, I take that back. We were outside sometimes and then there was a couple of occasions in the inside of his house where he would be crying and Mr. Martucci would slap him in the face on both sides of his face.

Assistant Solicitor: Can you sort of demonstrate in some way what you're talking about? What kind of slap or force was used?

Parker: The only way I can describe it is the way a person would smack a dog to make them mean, back and forth.

Assistant Solicitor: That's what he did to [Child's] head?

Parker: Yes, ma'am. I've seen him grab his face like that when he wouldn't stop crying and try to tell him to be quiet.

Assistant Solicitor: Did you ever see bruises or marks on [Child]?

Parker: I did notice the bruises on his face from the way he was grabbing him. And I believe I did notice the bite on his wrist. They—it did seem that they went out of their way to make sure he kept clothes on. I very rarely seen him without clothes, except for the incidents in the bathroom.

Dr. Michael Eugene Ward, Greenville County's chief medical examiner, was called to the hospital soon after Child was pronounced dead. He declared:

On initial examination at Allen Bennett Hospital, there were numerous bruises to [Child] about the face, the chest, the back, and the extremities. There were injuries that were present around the perineum or the penis, and to one of the arms that were especially disconcerting to us. And so we took samples of them at that time.

Dr. Ward performed an autopsy on Child. Photographs of Child and his internal organs were admitted into evidence over Martucci's objection. Dr. Ward used the photographs to explain Child's injuries:

This is a photograph of the left back leg of [Child]. This is right in the crux of the leg. And, as you can see, there are these bruises and superficial abrasions of the skin running in a linear fashion across the skin. These indicating that this is a result of blunt injury.

So it's not a sharp injury that you would expect from a knife or from some sort of cutting instrument. And it's not from a penetrating injury like a gunshot wound, but it's a blunt injury where the skin is compressed and there's disruption of underlying blood vessels resulting in a bruise, as well as a superficial abrasion or a scratching of the skin.

So this is linear injuries or line-shaped contusions to the back of [Child's] leg.

Assistant Solicitor: Dr. Ward, in your experience and training, are there any particular mechanisms of inflicting such a linear bruise?

Dr. Ward: There are. There are numerous instruments that can be used that will cause a linear-type bruise. Generally, they are things that are longer than they are wide. Certain things can be—they can be cords. They can be belts or even fingers if a slap is applied in a hard enough fashion that create these linear and sort of semi-circular type bruises as with this.


This is a photograph of the perineal region of the body of [Child]. This is the abdomen here, the pelvis, the penis, and the scrotum. Here at the base of the penis is a bruise, a sort of butterfly-shaped, if you will, bruise approximately one and a half inch in greatest dimension. There's a smaller bruise in this region here.

And right here at the base of the penis where the skin of the penis attaches to the pelvic skin, there's a superficial laceration or tear of the skin in this region. I took microscopic sections—at the time of autopsy, I took microscopic sections of the skin through this region here. It demonstrated acute hemorrhage or bleeding into the skin. But it indicated that there was no evidence of any healing. There was no inflammation. There was no granulation tissue. There was no evidence of repair to this region here or here.

Assistant Solicitor: And what did that indicate to you?

Dr. Ward: That is was a recent injury only a—no more than a few hours old. And as we will see with other injuries that there were, there was—which have evidence of healing that this act most very likely occurred at a different time than the other injuries—some other injuries. This is the result of blunt trauma. I believe that this is a blunt injury to this region here with superficial tearing of adjacent skin.


This is a photograph taken at the time of autopsy showing the intraabdominal cavity of [Child]. There were bruises on the outer surface of the skin. As we dissected beneath, there was—there were bruising beneath the skin and above the muscles of the abdomen.

When we reflected those muscles of the abdomen, we were able to demonstrate that there was over...

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